Insurance Issues TABLE OF CONTENTS

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1 TABLE OF CONTENTS I. INTRODUCTION... 1 II. PARTIES TO THE POLICY... 1 III. THE RISK OF NO INSURANCE... 2 A. Certificates Of Insurance Are Not Insurance Not Reasonable to Rely on an ACORD Certificate or Evidence of Insurance... 2 a. Disclaimers... 2 b. Signed by an Authorized Representative... 3 c. Errors Are Common in Certificates and Evidences of Insurance... 3 d. Certificates and Binders are Sometimes Issued Prior to Policy Issuance... 5 e. Deficient Insurance Specifications Excuse Certificates Which Incorrectly Certify Existence of Additional Insured Coverage... 5 f. Certificates Which Correctly Certify Existence of Additional Insured Coverage, But Coverage Is Unsuitable Standard Certificate Does Not Disclose Policy Exclusions or Modifications... 6 a. ISO CG b. ISO CG Failure to Obtain a Certificate... 7 a. Waiver... 7 b. Loss of Benefits... 7 B. No Advance Notice of Cancelation Standard Policy s Cancellation Notice Requirement Certificate and Evidence of Insurance Cancellation Notice Statement... 7 a. ACORD Forms... 7 b. Manuscripted Changes to the ACORD Form... 8 IV. LEASES... 9 A. Standard Endorsements ISO CP Additional Insured Building Owner ISO CP Building Owner Loss Payable ISO CP Business Income Landlord as Additional Insured (Rental Value) Endorsement B. No Protection for Insured s Acts C. Vacancy Clauses V. CONSTRUCTION A. Builder s Risk Insurance Insureds Common Errors and Problems a. Review of Policy Delayed Until After Construction Commencement b. Coverage Amount c. Coverage for Architect s Fees, Owner Supplied Materials, Debris Removal, Full Limit Coverage of Flood and Earthquakes, and Elimination of Law and Ordinance Exclusions Delay Damages a. Soft Cost Endorsement b. Delayed Completion and Force Majeure Endorsement B. Performance Bond Coverage of Delay Damages Coverage for Contractor s Failure to Provide Insurance VI. MORTGAGES AND SECURITY INTERESTS... 12

2 A. Mortgagee s Rights to Insurance Proceeds B. Different Forms of Mortgagee Interest Endorsements Simple Loss Payee/Open Mortgage Clause Standard Mortgage Clause Nature of Mortgagee s Interest Ownership Interest in Proceeds vs. Security Interest Equitable Lien on Insurance Proceeds C. Special Issues for Lenders in Workouts Provisions in Loan Documents for Handling of Insurance Proceeds; Replacement Cost Insurance The Self-Insured Borrower D. in Foreclosure Casualty Loss Prior to Foreclosure a. Preliminary Considerations b. Notices to Insurance Company Relationship of Proceeds to Secured Debt Bid Strategy a. Liquidating Casualty-Loss Claim Before Foreclosure Sale b. Foreclosure Before Applying Insurance Proceeds to Secured Debt E. Casualty Loss After Foreclosure F. Personal Property Loss Payable Clause Lenders Loss Payable Clause VII. RECEIVERSHIP AND BANKRUPTCY A. Receiverships B. Bankruptcy... 17

3 APPENDIX Charts Chart of Additional Interests Property Insurance Provisions...19 Liability Insurance ISO CG Texas Changes Amendment of Cancellation Provisions or Coverage Change...20 ISO CU Lessor Additional Insured and Loss Payee...21 ISO CG Additional Insured Owners, Lessees or Contractors Scheduled Person or Organization...22 ISO CG Additional Insured Managers or Lessors of Premises...25 ISO CG Additional Insured - Mortgagee, Assignee, or Receiver...30 ISO CG Additional Insured Designated Person or Organization...31 ISO CG Contractual Liability Limitation...33 ISO CG Amendment of Insured Contract Definition...34 Property Insurance ISO CP DS Commercial Property Coverage Part - Declarations Page...35 ISO IL Common Policy Conditions...36 ISO CP (07/88) Commercial Property Conditions...38 ISO CP Building and Personal Property Coverage Form...40 ISO CP Loss Payable Provisions...58 ISO CP Additional Insured - Building Owner...61 Additional Expense Soft Cost Coverage...62 Certificates, Evidences and Insurance Binder ACORD 24 (2009/09) Certificate of Property Insurance...64 ACORD 25 (2010/05) Certificate of Liability Insurance...65 ACORD 28 (2009/12) Evidence of Commercial Property Insurance...66 ACORD 75 (2010/04) Insurance Binder...68 END NOTES...70

4 INSURANCE ISSUES IN CASE OF DEVELOPER, OWNER, LANDLORD, TENANT OR CONTRACTOR DEFAULT Written by Bill Locke and Marilyn C. Maloney And Joined for Presentation by Charles E. Comiskey I. INTRODUCTION When one of the parties to a transaction is in financial distress (the distressed party ), the other parties (the parties to be protected ) should ask the following questions: Is there an increased risk for the occurrence of bodily injury or property damage? Are my insurable interests insured? How do I know they are insured? Am I relying on the distressed party to provide liability or property insurance to protect my insurable interest? If so, will I be notified in advance of cancellation of the insurance? What if the distressed party does not pay the insurance premium? What happens if the distressed party does not contact the insurer or cooperate with the insurer after the occurrence of an insured loss or peril? If the insured loss or peril occurs, is my insurable interest adequately protected? Who will adjust the loss? To whom will the insurance proceeds be paid? Unfavorable answers to these questions will determine if there is a risk that insurance will not appropriately or adequately afford protection to the parties to be protected (a financial distress risk ). II. PARTIES TO THE POLICY Covered losses are paid under an insurance policy to or on behalf of an insured. The Declarations Page i of an insurance policy names the person or organization who is the insured and such person or organization is the named insured. If more than one person or organization is named in the Declarations Page as an insured, the first person or organization named is the first named insured. Additionally, the policy may identify other persons or organizations who qualify as insureds on the basis of their relationship to the named insured. For example, a liability policy ii on which an organization is the named insured, may provide that the organization s employees are automatically covered and are automatic insureds. iii Similarly, the standard commercial property policy contains the standard mortgage clause providing that loss payments will be made to the insured and the mortgageholder as their interests may appear. Under a CGL policy many types of persons or organizations may be added by endorsement as an additional insured, upon approval of the insurer. Many liability insurers issue blanket endorsements specifying certain parties that are automatic additional insureds under their liability policies without the need for further endorsement to actually name the person or organization as an additional insured on the policies if the contract between the insured and the additional insured contractually obligates the insured to cause its insurer to add the person or organization as an additional insured on the insured s liability policy. Persons or organizations are routinely added to a CGL policy as additional insureds by endorsement. There are standard additional insured endorsements to the standard liability policy. iv A review of the standard additional insured endorsements contained in the Appendix will reveal that limitations v and exclusions vi for coverage may be contained in an additional insured endorsement. A common error in insurance specifications is to specify that a party is to be added to the named insured s policy as an additional named insured. vii In a property policy, the insured is the party identified on the Declarations Page as having an insurable 1

5 interest in the covered property and to whom loss payments will be paid if the property is damaged or destroyed. Third parties may be designated by endorsement to the property policy as an additional insured to protect their additional interests. viii III. THE RISK OF NO INSURANCE A. Certificates of Insurance Are Not Insurance ix 1. Not Reasonable to Rely on an ACORD Certificate or Evidence of Insurance a. Disclaimers An ACORD x Certificate of Insurance and ACORD Evidence of Insurance should not be relied on as being accurate or as properly defining coverages, exclusions, and deductibles. xi The ACORD 24, 25, 27 and 28 contain the following disclaimers negating reliance. The first disclaimer, which is in all caps and bold print, appears at the top of the form and reads: THIS [CERTIFICATE / EVIDENCE OF PROPERTY INSURANCE / EVIDENCE OF COMMERCIAL PROPERTY INSURANCE] xii IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE [CERTIFICATE HOLDER / ADDITIONAL INTEREST NAMED BELOW]. THIS [CERTIFICATE/ EVIDENCE OF INSURANCE] DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THE CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE [CERTIFICATE xiii xiv HOLDER / ADDITIONAL INTEREST]. An additional disclaimer appears in each of the ACORD forms following the Coverages heading and immediately before the specification of the coverages of the described insurance. This disclaimer is in all caps but is not in bold print. It reads: [THIS IS TO CERTIFY THAT] xv THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. In TIG Ins. Co v. Sedgwick James of Washington, 276 F.3d 754 (5 th Cir. 2002), aff'g 184 F.Supp.2d 591 (S.D. Tex. 2001), the client (Safety Lights) of a delivery service (U. S. Delivery) and the client's insurer (TIG) sued an insurance broker (Sedgwick James of Washington), alleging that the broker had misrepresented on an insurance certificate that Safety Lights was an additional insured on U.S. Delivery's liability insurance policy issued by Lumbermens Mutual Casualty Co. The suit arose after Wright, an independent contractor hired by U. S. Delivery, was injured delivering a steel plate to Safety Light's facility. TIG, Safety Light's liability insurer, defended the claim by Wright and sought reimbursement for the settlement and the costs of defending the suit after Lumbermens denied that Safety Lights was an additional insured on its liability policy. The certificate of insurance certified that Safety Lights was an additional insured on the Lumbermens CGL policy. The Fifth Circuit found that Sedgwick did not have authority, either actual or apparent, to make Safety Lights an additional insured on Lumbermens CGL policy. The court found that the disclaimer on the certificate of insurance (the first ACORD disclaimer discussed above) effectively negated reliance by Safety Lights on the express statement of additional insured coverage in the certificate of insurance, absent the existence of proof of Sedgwick's apparent authority to alter the terms of Lumbermens CGL policy to add Safety Lights as an additional insured. The district court held as a matter of law that Safety Lights could not have reasonably relied on the insurance certificate. The court made the following statements: An insured has a duty to read the insurance policy and is charged with knowledge of its provisions. The Court concludes that (the party to be protected), claiming to be an additional "insured" under (the policy) should be held to the same obligation as a named insured to review a policy of insurance on which it seeks to rely, and its reliance solely on the agent's 2

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